In January 2023, an incident arose in Memphis Tennessee involving numerous city police officers and Tyre Nichols. As a result of that incident, Mr. Nichols died days after the event. On January 26, 2023, several Memphis Police officers were charged with “murder, aggravated assault, aggravated kidnapping, official misconduct and official oppression” according to an AP News timeline. On January 27, 2023, video footage of the incident was released and it immediately received national attention. Since this is a pending criminal investigation there is likely more evidence of the events that has not been released.
There is an issue that relates to this incident and the video footage that has had almost no commentary. It is the issue of what might have happened had Mr. Nichols been armed and had he acted in self-defense.
The law of self-defense is generally known by most adults and even young adults and children as the right of someone to defend themselves from injury or harm. In Tennessee the doctrine of self-defense is defined by statute and is found in Tennessee Code Annotated § 39-11-611.
On the use of “deadly force” in self-defense, the statute provides in subsection(b)(2):
(2) Notwithstanding § 39-17-1322, a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse;
(B) The danger creating the belief of imminent death, serious bodily injury, or grave sexual abuse is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
The language in the statute concerning whether a person is engaged in conduct that would constitute a felony or Class A misdemeanor can be ignored for this discussion because that clause relates only to a legal presumption that addresses whether an individual has a duty to attempt to retreat prior to resorting to deadly force. In this instance, the videos seem to indicate that there was no opportunity to retreat and that even an attempt to do so was defeated by law enforcement officers.
The news stories and the videos that have been released so far indicate that a the conditions in Tennessee Code Annotated § 39-11-611(b)(2)(A-C) are probably clearly satisfied in this incident.
So, assume that the individual being subject to the law enforcement detention and use of force had a gun or other weapon or was able to get one from one of the officers during these events. Further, assume that the individual neither brandished nor used the weapon until after the circumstances of subsections A-C arose. Well, Tennessee law speaks to that as well.
The Tennessee self-defense statute specifically addresses whether an individual can use deadly force against a law enforcement officer. This is what is found in the statute in subsection (e)(3):
(e) The threat or use of force against another is not justified:
(1) If the person using force consented to the exact force used or attempted by the other individual;
(2) If the person using force provoked the other individual’s use or attempted use of unlawful force, unless:
(A) The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
(B) The other person nevertheless continues or attempts to use unlawful force against the person; or
(3) To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:
(A) The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and
(B) The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer’s use or attempted use of greater force than necessary.
Subsection (e) has been in the Tennessee statutes since at least the revisions to those statutes in 1989. Further, the comments to the statutes state:
Subsection (e) represents a policy decision by the commission that the street is not the proper forum for determining the legality of an arrest. To a large extent, the rule is designed to protect citizens from being harmed by law enforcement officers. Research has shown that citizens who resist arrest frequently are injured by trained officers who use their skills and weapons to protect themselves and effectuate the arrest. If the defendant knows it is a law enforcement officer who has stopped or arrested him or her, respect for the rule of law requires the defendant to submit to apparent authority. The justification is restored if the law enforcement officer uses greater force than necessary under the circumstances and the defendant acts under reasonable belief that his or her acts are necessary for self-protection.
David Rausch, the Director of the Tennessee Bureau of Investigation has commented quite negatively on the acts of the officers in the videos that have been released so far.
Tennessee law clearly has a provision for civilian use of deadly force against a law enforcement officer if – and only if – certain conditions exist. Is this video evidence of a situation where this provision of Tennessee law would have applied?
Some may argue that these video tapes show that one or ore of the officers used “great force than necessary” – certainly, comments from some in government already reach that conclusion. Some may also conclude that Mr. Nichols, had he had access to a weapon, might have “reasonably believed” that use of that weapon to resist unlawful attacks against him by law enforcement would have been necessary to defend himself from an imminent risk of death or serious bodily injury.
But, what would have occurred had he done so?
Would the other officers have used more force or simply responded with gunfire? If Nichols would have been legally justified in using deadly force to defend himself from the initial excessive force being used by law enforcement against him, would the resulting response by law enforcement that likely would have been an overwhelming barrage of lethal gunfire been justified use of force by those officers? Had they done so, would they be facing homicide charges for that?
What if the video proof showed an unlawful use of force by law enforcement against Nichols, as Direct Rausch seems to indicate, and Nichols had justifiably used deadly force in response, would he have been arrested and charged for assaulting or potentially killing an officer? Would the physical assault by law enforcement on Nichols have escalated?
This never should have happened. The fact that it did happen raises the question of what does Tennessee law provide if or when a civilian is subject to such clearly unlawful use of force by law enforcement that the civilian may have the right to use deadly force in response. Does a civilian who is perhaps lawfully justified in doing so likely signing their own immediate execution warrant if other officers are present.
It also raises the question of why, apparently, did not a single officer use force, including potentially deadly force, to save the life of Nichols? One answer to that question is that law enforcement officers have no legal duty to protect the life of a civilian even if they are present, on duty, and could do so. (see, e.g., U. S. Supreme Court in Castle Rock v. Gonzales)
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